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COA rules on landowner first-impression issue

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For the first time, the Indiana Court of Appeals needed to decide whether an urban or residential landowner owes a duty to protect neighbors from damage caused by a tree falling from the landowner's property.

In J. John Marshall and Marjorie Marshall v. Erie Insurance Exchange a/s/o Cindy Cain, No. 20A03-0908-CV-366, Cindy Cain's home is next to a vacant lot owned by Marjorie Marshall, which John helped to manage. Elkhart code enforcement told them that a tree on the lot needed to come down, so John had a professional arborist inspect the tree. The arborist just visually inspected the tree and determined it didn't need to be taken down. The tree later fell onto Cain's house. Her insurer, Erie, reimbursed her for the repairs and brought a suit against the Marshalls for damages for negligent maintenance of the tree. Marjorie died before the bench trial concluded.

The trial court entered judgment in favor of Erie; John filed a motion to correct error, which the trial court denied.

John argued there was insufficient service of process upon Marjorie. Even though someone else signed the return receipt indicating the notice was received, the service by mail was effective, ruled the appellate court.

John also claimed the trial court erred in finding they owed a duty of care to Cain. Judge Margret Robb wrote it would appear the Restatement (Second) of Torts section 363 forecloses the issue of whether the Marshalls owed any duty to protect Cain from the fallen tree. But that would leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure a dangerous tree just because it was a natural condition of the land. Like several other states, the appellate court adopted a reasoning that departed from the strict application of the rule in context of urban or residential property.

Living in close quarters substantially increases the risk that a falling tree will cause damage or injure someone, and similar to the problem relating to a highway - as mentioned in the Restatement rule - the reduced size of property lots in an urban or residential setting make the burden of time and money to inspect and secure trees relatively minor especially as compared to the potential damage that could result from the tree's fall, she wrote.

The appellate judges held that an urban or residential landowner has the duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners arising from the conditions of trees on his or her property.

The trial court properly applied a duty of reasonable care to the Marshalls, and properly found that sufficient evidence supported the Marshalls breached that duty and that John was jointly and severally liable since he acted as Marjorie's agent in care of the lot.

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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